Bork Won

The “campaign against him”—against Robert Bork, nominated for the Supreme Court—“did not resemble an argument so much as a lynching.” Even the Washington Post, though editorializing against Bork’s confirmation in October 1987, could not condone the unprecedented personal and political assault against the nominee. The left’s attack on Bork had gone far beyond mere good-faith intellectual or ideological disagreement, devolving instead into “intellectual vulgarization and personal savagery,” “profoundly distorting the record and the nature of the man.”

But of course those attacks, which came to a head 25 years ago this month, prevailed. Within weeks of the Post’s editorial, the Senate would overwhelmingly reject Bork’s nomination. And within months, the decidedly un-Borkish Anthony Kennedy would fill the seat intended for Bork (to conservatives’ perennial frustration), while Bork himself would resign his seat on the lower federal court of appeals.

Bork’s was not the first failed Supreme Court nomination—far from it. Of the 160 nominations submitted by presidents to the Senate, 36 have fallen short of receiving the Senate’s constitutional “advice and consent”; 10 other nominees preceded Bork in being rejected outright by a vote of the full Senate.

But one cannot simply lump in President Reagan’s failed nomination of Bork with, say, President Cleveland’s doomed nomination of William Hornblower, the New Yorker whose forgettable nomination fell victim to Empire State political feuds. Rather, Reagan’s nomination of Bork, and the left’s aggressive response, still reverberates 25 years later.

_____________

In hindsight, the great irony of the Bork fiasco was that President Reagan nominated Bork precisely because the administration assumed that his would be an easy confirmation.

In 1987, when Justice Lewis Powell announced his retirement, such an expectation was not altogether unfounded, given the administration’s record of three successful Supreme Court appointments. First, Reagan fulfilled a campaign promiseby nominating Sandra Day O’Connor, whom the Senate confirmed by a 99–0 vote in 1981. Five years later, when Chief Justice Warren Burger retired, Reagan replaced him with a sitting justice, William Rehnquist, and then nominated Antonin Scalia to take Rehnquist’s spot. Rehnquist was confirmed by a wide 22-vote margin,despite not only his conservative record on the court, but also allegations that as a young clerk decades earlier he had urged Justice Robert Jackson to reaffirm segregation in Brown v. Board of Education.And Scalia, in turn, was confirmed overwhelmingly 98 to 0; “the two missing were Barry Goldwater and Jake Garn,” he reflected years later, “so make it 100.”

Those confirmations boded well for Bork; strictly in terms of professional accomplishment, he far outpaced Scalia and O’Connor. He had served on the Yale law faculty for nearly two decades, broken only by his service as President Ford’s solicitor general, the government’s advocate in the Supreme Court. In 1981, shortly after Bork permanently left Yale to begin a full-time legal practice in Washington,President Reagan nominated him to the U.S. Court of Appeals for the D.C. Circuit, an intermediate federal court largely responsible for adjudicating challenges to federal regulations and other agency actions, as well as constitutional challenges to major laws.Bestowed with an “Exceptionally Well Qualified” rating from the American Bar Association, Bork glided smoothly to a unanimous Senate confirmation.

When Bork accepted the D.C. Circuit seat, both he and the administration had grander designs in mind. The administration had recruited Bork away from his lucrative legal practice only by making an offer too good to refuse. “If Bork took a judgeship on the [D.C. Circuit],” David Savage later recounted in Turning Right (1992), “his name would be on the short list of potential nominees to the Supreme Court.”

On the D.C. Circuit, Bork was often frustrated by that court’s docket; invoking the closing lines of Heart of Darkness, he told the Los Angeles Times that “my last words will be ‘The trivia, the trivia.’?” Nevertheless, he persevered on the court, even after the Reagan administration passed him over for O’Connor, for Rehnquist as Chief Justice (“an especially crushing blow,” according to Savage),and for Scalia. In fact, Bork was the runner-up for the Scalia seat, falling short largely because of Scalia’s youth, better health, and politically appealing Italian-American heritage. “Reagan initially wanted Bork,” Jan Crawford Greenburg reported years later in Supreme Conflict (2007), but “when his advisers sketched out the politics,” Reagan ultimately chose Scalia.

And so when Justice Powell announced his retirement on June 26, 1987, nine months to the day after Scalia’s confirmation, Judge Bork was sufficiently frustrated to downplay the notion that he would finally get the nomination. “The administration has [a] well-entrenched tradition of passing me over,” he told his D.C. Circuit colleague, Judge James Buckley.

But the administration saw matters quite differently, as evidenced in a scene vividly recounted in Supreme Conflict. The moment they learned of Powell’s resignation, two stars of the Justice Department, Chuck Cooper and Michael Carvin, immediately called the head of the department’s judge-screening team, William Bradford Reynolds.“?‘Bork,’ they said in unison. Reynolds’s response was swift: ‘Done.’?”

While other candidates, including Senator Orrin Hatch, were nominally added to the list, Bork’s selection was never seriously in doubt; he received the nomination just five days after Powell resigned. As Ethan Bronner recounts in his comprehensive history of the Bork nomination, Battle for Justice (1989), the press “feigned shock at the sight of Bork when President Reagan unveiled the nomination. “?‘Surprise, surprise, surprise,’ they offered aloud.”

_____________

But the administration and the press were not alone in anticipating Bork. When Powell’s resignation was announced, staff in Senator Ted Kennedy’s office had already begun to collect research on Bork; even before Bork’s nomination was announced, Senator Kennedy had readied a speech denouncing him. Kennedy even considered delivering his anti-Bork speech before a nominee was announced in hopes of preempting Bork’s selection, according to Bronner.

Kennedy ultimately eschewed the preemptive attack and awaited the nomination, but he would not have to wait for long. President Reagan announced Bork’s nomination the next day, July 1, 1987. Less than an hour after Reagan announced the Bork nomination, Senator Kennedy took to the floor of the Senate and delivered the speech “Robert Bork’s America”:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.

Kennedy delivered his blow not only to wound Bork, but also to buy himself the time necessary to mount an all-out assault. “The statement had to be stark and direct so as to sound the alarm and hold people in their places until we could get material together,” he later crowed to the Boston Globe. “I was confident we could win this one.”

Kennedy, with Senate Judiciary Committee Chairman Joe Biden and others, pushed the confirmation schedule back several months, after the August recess, and put that time to good use. They held meetings and coordinated strategy with the Alliance for Justice, People for the American Way, and other liberal groups.And they continued to levy charges against Bork in public: At the NAACP’s annual convention in July, its executive director vowed, “We will fight it all the way—until hell freezes over, and then we’ll skate across on the ice.”

The administration simply was not ready for its opponents’ shock-and-awe tactics—much to the nominee’s chagrin. “The White House, unprepared for a campaign of this scope and ferocity, did little in the public arena” to rebut the charges, Bork later wrote in his post-nomination memoir and treatise, The Tempting of America (1990).

But in fairness to the administration, at least some of its flat-footedness owed not just to the severity of the left’s rhetoric, but also to the fact that Bork’s nomination, assumed to be an easy replay of Scalia’s unanimous win a year earlier, had suddenly become the first major political fight over originalism, the still-nascent conservative judicial philosophy that looked to return constitutional judicial decision-making to an inquiry into the Founding Fathers’ original view of the Constitution.

Conservative legal scholars and political officials had been gearing up for this fight in earnest for years. The Federalist Society emerged from law-student organizations in the early 1980s, to promote conservative jurisprudence in academia. In turn, that campus debate “burst into noisy and public view,” as co-founder Steven Calabresi later recalled, when Attorney General Edwin Meese and Justice William Brennan traded barbs in public speeches in 1985 and 1986.

But in 1987, originalism was still in its formative stages, skeletal or tentative in many respects, most often presenting itself as an inquiry into the Founding Fathers’ “intent.” In his opening statement before the Senate Judiciary Committee, Bork himself offered the following formulation:

How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern[,] whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various amendments.

Even when tempering that rule with “great respect for precedent,” as Bork did in his statement,general invocation of the Founding Fathers’ “intentions” left liberal activists great latitude to argue that Bork desired to return constitutional law to the 18th century, erasing 20th-century precedents that recognized broad federal power to regulate interstate commerce and promote civil rights, as well as precedents recognizing constitutional rights of privacy, abortion, obscenity, and other hard-fought liberal victories.

At the hearings, senators challenged Bork relentlessly, pressing him to rebut charges that his originalist jurisprudence would undo everything from Roe v. Wade to Brown v. Board of Education. They undermined his credibility by quoting prior writings and speeches, such as a 1985 address to Canisius College in which Bork remarked: “I don’t think that precedent is all that important. I think the importance is what the Framers were driving at, and to go back to that.”

And once Bork’s five days at the witness table drew to a close, the committee continued with another seven days of witness panels, featuring everyone from retired Chief Justice Burger in Bork’s favor (“It would astonish me to think that he is an extremist any more than I am an extremist”)to Harvard law professor Laurence Tribe in opposition.The written record comprised thousands of pages of submissions—including a letter from then governor Bill Clinton, Bork’s former student at Yale, who stressed, “I do not want to be a divisive force,” before warning that if Bork had his way on civil rights, “reactionary forces in our states will be tempted to try again to reopen old wounds.”

Even after receiving a “Well Qualified” rating from the American Bar Association, Bork and the administration could not prevail. Once the Senate Judiciary Committee rejected Bork’s nomination by a 9–5 vote on October 6, Washington largely doubted that Bork and the administration would press forward for a full Senate vote. Bork himself strongly considered withdrawing his nomination, until Senator Alan Simpson and others convinced him to fight on.Appearing before the White House press corps on October 9,Bork denounced the “public campaigns of distortion.” “If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees,” he further argued. “For the sake of the Federal judiciary and the American people, that must not happen.”

Bork’s stand inspired and invigorated conservatives, but it could not change the ultimate outcome. On October 23, 58 senators, including six Republicans, voted down his nomination. “I congratulate all those who have chosen to engage in the debate on principle,” said Sen. Biden, closing the debate on a festive note.

The rejected nominee offered a much different reaction to the news. “There is now a full and permanent record by which the future may judge not only me but the proper nature of a confirmation proceeding,” his statement read.

_____________

Bork was not alone in noting what his hearing portended for future nominations. Amidst the Senate hearings, the New York Times’s Stuart Taylor observed that the Supreme Court nomination “process may have been permanently transformed” by what had happened.

If anything, Taylor underestimated the event’s gravity. For the two and a half decades that followed, justices were nominated, debated, and confirmed or rejectedin the shadow of the Bork hearings. Post-Bork, the ideal nominee became basically the anti-Bork, one with seemingly reliable ideological instincts but little or no paper trail of constitutional scholarship—and, also important, the ability to deflect, over and over again, pointed questions of constitutional theory.

This trend began with the next open seat on the court, vacated by liberal lion William Brennan’s retirement in 1990. As Greenburg writes in Supreme Conflict, White House Chief of Staff John Sununu advocated the nomination of his fellow New Hampshirite, David Souter, because “Souter’s scant record would avert the kind of battle waged over Bork just three years before.”In light of both the Bork nomination and the subsequent nomination of Judge Douglas Ginsburg, who withdrew upon revelations of his past marijuana use, President Bush ultimately agreed. “Souter was clean and confirmable, two critical factors for a nomination so close on the heels of the controversial Bork and the disgraced Ginsburg,” writes Greenburg.

Nominees (and the administration backing them) became more adept at identifying politically sensitive constitutional questions and avoiding, wherever possible, direct answers to those questions. After the confirmations of Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer followed this pattern, law professor Elena Kagan—herself a future Supreme Court nominee—wrote in 1995 that “not since Bork?.?.?.?has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.” In Kagan’s and many others’ opinion, it was a lamentable development:

Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the court and a determination whether the nominee would make it a better or worse institution.

(Years later, at Kagan’s own confirmation hearing, when Sen. Lindsey Graham observed that her vague answers fell easily into the trend that she had previously decried, Kagan conceded, “I will say one thing, Senator Graham, which is it just feels a lot different from here than it felt from back there.”)

And finally, future administrations resolved never to repeat the Reagan administration’s failure to adequately prepare for confirmation combat. The selection of Bork had been rooted in a woefully inadequate analysis of the nominee’s prospects. In Supreme Conflict, Greenburg describes the Reagan administration’s “breathtakingly naïve” internal memoranda, which had concluded that “even liberals respect Bork’s intellectual force” and that “the media will also be kind toBork because of his strong support for the First Amendment in a recent libel decision.” And after nominating Bork, the administration did little to prepare the nominee to answer hostile questions: “Bork’s preparation largely consisted of a few sessions in his living room with [Justice Department lawyers]. If either made suggestions on how to respond to senators more diplomatically, Bork would just smile?.?.?.?‘I’ll say it the way I’m going to say it,’ he’d respond.”

Future administrations would make no similar mistakes: Supreme Court nominees today are vetted with vigor worthy of presidential running-mate selections, and once chosen the nominees are subjected to harsh “murder board” prep sessions. For John Roberts’s confirmation hearings, for example, the Bush administration convened “at least a dozen murder boards,” according to the National Law Journal; they were so effective that Democratic senators Russ Feingold and Diane Feinstein openly complained about the nominees’ preparations.

_____________

The changed course of future Supreme Court nominations was the Bork nomination’s most obvious legacy, but that was not its only legacy. Indeed, the Bork nomination’s most significant impact may be not the manner in which Supreme Court justices are selected, but rather the content of constitutional law itself. For while Bork himself was pilloried for embracing an originalist approach to constitutional law, his nomination’s failure laid the basis for originalism’s eventual success. The Bork hearings galvanized conservatives and challenged them to refine originalism to achieve greater political effectiveness.

Bork himself took the first significant step by writing The Tempting of America, the first substantial book-length defense of originalism. In it he presented originalism as a matter of theory and then, in recounting the confirmation fight, responded to the charges levied against him by senators and liberal activists. For example, Bork attempted to resolve alleged conflicts between the originalist theory and Brown v. Board of Education, which relied upon sociological arguments utterly foreign to originalism. “The purpose that brought the fourteenth amendment into being,” Bork wrote, “was equality before the law, and equality, not separation [i.e., separate-but-equal], was written into the [Constitution’s] text.”

More important, Bork’s defense of originalism would be followed by the comprehensive efforts of scholars such as Michael McConnell (who developed a lengthy defense of “Originalism and the Desegregation Decisions”), Randy Barnett (on the Commerce Clause), John Yoo (on the president’s war powers), and myriad other conservative proponents of originalism.

Even more fundamentally, the Bork hearings forced originalists to reconsider, or at least further develop, first principles. Where Bork had defended originalism primarily as an inquiry into the Founding Fathers’ “intentions”—a seemingly subjective inquiry, irrevocably tied to the Framers’ politics and prejudices—conservatives eventually shifted their focus away from “intentions” and toward the more objective “original public meaning” of the constitutional text.

The Bork nomination had profound organizational effects as well, which were recounted in Steven M. Teles’s The Rise of the Conservative Legal Movement.“It was tremendously energizing for conservatives, having a martyr, basically,” said Steven Calabresi, a Federalist Society co-founder who had clerked for Bork on the federal court of appeals and later assisted Bork in writing The Tempting of America.Before Bork’s nomination, the Federalist Society’s budget “had leveled off. In the four years after it, the Society’s budget doubled, in large part due to the ‘Bork effect.’?”

A quarter century later, originalists are far from declaring total victory—Roe v. Wade still stands—but they can claim major successes. Under Chief Justice Rehnquist, the Supreme Court reimposed substantive limits on the scope of the federal government Commerce Clause power, and the Roberts court extended that victory by holding this year that the Commerce Clause does not empower the federal government to mandate the purchase of health insurance. Meanwhile, in D.C. v. Heller (2008) and McDonald v. City of Chicago (2010), the court relied primarily on originalist analysis in holding that the Second and Fourteenth Amendments prohibit federal and state officials from unduly burdening an individual’s right to keep and bear arms.

_____________

Looking ahead, the most significant proof of originalism’s success may be found not on the ideological right, but on the left. In recent years, liberal legal scholars have increasingly sought to couch their own arguments in originalist terms. In 2007, Douglas Kendall and James Ryan wrote in the New Republic of a “nascent movement among progressives to embrace the Constitution rather than run from it.?.?.?.?[O]nce liberals understand that the Constitution is a progressive document, it will transform the way in which they argue.”Kendall himself founded the Constitutional Accountability Center specifically to promote a progressive version of originalism.

This year, the push for a liberal originalism grew all the more prominent when Yale convened a two-day conference to discuss Professor Jack Balkin’s liberal originalist manifesto, Living Originalism.At the very moment that the Supreme Court toiled away on its ObamaCare opinions, “liberal originalists” such as Yale’s Balkin, Akhil Amar, and others debated liberal non-originalists and conservatives on the basic question of whether originalism was strictly conservative intellectual territory.

Three years earlier, reviewing Balkin’s early efforts to formulate a “liberal originalism,” conservative Calabresi offered him “two cheers,” adding that “Professor Jack Balkin’s recent writings on originalism are just superb and are among the best work done on the subject.” Of course, while Calabresi applauded Balkin’s and other liberals’ inquiry, he deeply disagreed with the substance of their analysis. “As a result,” Calabresi added, “there is no question facing constitutional theorists more important than that of deciding whether the originalism of Justice Scalia, Justice Thomas, or Professor Balkin is correct.”

Only 25 years after Robert Bork suffered public defeat at the hands of Ted Kennedy and the left, the most interesting question in constitutional law is not whether conservatives can prevail with originalism, but whether liberals can prevail without it. Welcome to Robert Bork’s America.